ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-483884
DATE: 20150923
B E T W E E N:
CHANDERDAI PETERS, Executrix and Trustee of the Estate of ISAAC PETERS
Plaintiff
– and –
DESJARDIN SECURITE FINANCIERE, COMPAGNIE D’ASSURANCE VIE/DESJARDINS FINANCIAL SECURITY LIFE ASSURANCE COMPANY and METRO ONTARIO INC.
Defendant
James Jagtoo, for the Plaintiff
Emily Caputo, for the Defendant
HEARD: August 31, 2015
PATTILLO J.:
Introduction
[1] On December 22, 2012, Isaac Peters (“Isaac”) died from blunt force injuries caused by a fall from the balcony of his 12th floor apartment in downtown Toronto.
[2] Isaac’s mother, the Plaintiff Chanderdai Peters, in her capacity as Executrix and Trustee of his Estate, commenced this action against the Defendant Desjardin Securite Financiere, Compagnie D’Assurance Vie/Desjardins Financial Security Life Assurance Company (“Desjardins”) claiming payment of an accidental death benefit pursuant to a group policy of insurance issued by Desjardin to the Defendant Metro Ontario Inc. (“Metro”) (the “Policy”) pursuant to which Isaac was insured. The Plaintiff also asserts a claim for breach of duty of good faith by Desjardins.
[3] Desjardins brings this motion for summary judgment dismissing the Plaintiff’s action on the basis there is no genuine issue for trial because the Plaintiff cannot meet the burden of establishing that Isaac’s death was an accident as defined by the Policy. In the alternative, Desjardins relies on the suicide exclusion in the Policy.
[4] For the reasons that follow, Desjardins’ motion is allowed. In my view, based on the evidence, the Plaintiff cannot establish on a balance of probabilities that Isaac’s death was an accident, as defined in the Policy. Accordingly, the action must be dismissed.
Discussion
[5] The Plaintiff submits there is a genuine issue for trial given that the evidence supports death by accident or suicide. Further, the Plaintiff submits there are credibility issues in respect of certain issues which require a trial. Finally, the Plaintiff submits that Desjardins in all likelihood will still be part of the trial given that Metro is not participating in the motion.
[6] There is no issue that Isaac, who was an employee of a wholly owned subsidiary of Metro at the time of his death, was covered by the Policy, which included both life insurance and accidental death and dismemberment insurance (“AD&D Insurance”). Isaac designated the Plaintiff as the beneficiary under both policies. The parties have resolved their issues in respect of the life insurance portion of the Policy.
[7] The AD&D Insurance portion of the Policy provides, among other things, that upon receipt of Proof of Claim satisfactory to the Insurer that…the loss was the direct result of an accident, independent of any other cause … the Insurer will pay the amount applicable to any such loss in accordance with the Schedule of Losses. The AD&D death benefit at issue is $176,000 (two times Isaac’s annual salary of $88,000).
[8] The Policy contains the following definition of Accident:
Accident means any event due to sudden and unforeseeable external causes that inflicts bodily injuries which are certified by a Physician, directly and independently of any other cause. It does not mean any form of disease, or degenerative process, an inguinal, femoral, umbilical or incisional hernia, or any infection other than an infection of a visible, external cut or wound accidently sustained.
[9] Further, the AD&D Insurance portion of the Policy contains an exclusion for suicide or intentionally self-inflicted injury, while sane or insane.
[10] There was no direct witness to Isaac’s fall. That said, the parties have amassed a large amount of evidence from family and friends of Isaac as well as from law enforcement and medical personnel who were involved on the day of Isaac’s death and in the investigation that followed. Subject to the Plaintiff’s objection to the credibility of the investigating officer and the coroners concerning their conclusion as to how Isaac died, which I will deal with in due course, there is no dispute between the parties in respect of the evidence. The dispute arises from the inferences that each side asks the court to draw from the facts.
[11] The following is a summary of the facts which I accept.
[12] Isaac was 40 years old when he died. He was five feet, nine and a half inches tall. He graduated from the University of Toronto with a degree in pharmacology in 1995 and subsequently became licensed as a member of the Ontario College of Pharmacists. Thereafter, he worked as a pharmacist and at the time of his death, had been employed by Metro Ontario Pharmacies Limited, a wholly owned subsidiary of Metro for 11 years. He earned approximately $88,000 a year and owned his own condominium in downtown Toronto, mortgage free. There is no evidence that he was under any financial distress. He is survived by his parents and two siblings.
[13] Isaac is described by his family and friends as having a peaceful disposition and demeanor. He had no criminal charges or convictions. He is described as being a neat and orderly person. His mother said that he began dating when he was 16 and has had a number of relationships since that time. His last relationship was with a girl called Amy to whom he was engaged to be married. They dated for approximately three and a half years during which time they broke up and then reconciled on a “number of occasions”. Amy ended the relationship in October 2012.
[14] At approximately 12:15 a.m. on December 22, 2012, Isaac attended at Amy’s place of work and followed her when she left work. Amy went directly to 52 Division Police Station where she filed a complaint against him. She told the police about their previous relationship and the break up. She said that Isaac had called her cell phone and that she had told him that the calls were unwanted. She said she was not concerned about violence.
[15] At 1:46 a.m., the police called Isaac and spoke with him on the phone. He was cautioned about contacting Amy and warned that he could be charged with criminal harassment. The officer who spoke to him described him as “calm, sober”.
[16] At 1:59 a.m., Isaac’s phone record indicates he called his brother Donald. Donald called him back at 2:00 a.m. and the call lasted 18:00 minutes. Donald then called his mother and related the conversation to her. Donald had a further call with Isaac at 2:30 a.m. which lasted 21 minutes. Donald said that Isaac was upset that Amy had called the police who had then called him to advise him not to contact her.
[17] At approximately 2:48 a.m., the Plaintiff telephoned 9-1-1 to have the police check on her son who she said was having relationship problems and was about to jump. She told the dispatcher that her other son had spoken to him 10 minutes ago. She said he was depressed and lived alone. She asked that the police call her with the results. The Plaintiff said that the reason she called 9-1-1 to have the police check on Isaac was because she and her family had the flu and were immobile.
[18] As a result of the Plaintiff’s call to 9-1-1, two police units were dispatched to Isaac’s apartment at 2:55 a.m. At the same time, the dispatcher spoke with Isaac and advised him that the police would visit him. The dispatcher noted that Isaac indicated he was in bed and didn’t feel like hurting himself.
[19] At approximately 3:00 a.m., four police officers arrived at Isaac’s apartment and spoke with him. They bluntly asked him if he was planning to hurt himself and he said no. The officers believed Isaac that he had no intention of harming himself and left him to go back to sleep. The event was closed by the police at 4:14 a.m.
[20] Isaac’s phone records indicate that he received another call from Donald at 3:37 a.m. which lasted 17 minutes. Donald said he spent time calming him down. He urged him to get a good night’s sleep and things would look different tomorrow. Isaac listened to him and went to bed.
[21] Around noon on December 22, 2012, Isaac visited a friend. He seemed preoccupied regarding his car which needed repair and winter tires. They made plans to meet later that evening for dinner. Isaac then left and went to Scarborough to visit his parents and sister where he spent a few hours before returning to his condominium downtown.
[22] At 5:32 p.m., Isaac called his brother Donald. Donald told Isaac that he couldn`t take the call at the time as he was in a store at the check-out and asked if he could call him back. Isaac said that would be fine. Donald said he sounded normal and nothing seemed out of the ordinary.
[23] At 5:54 p.m. a caller told police that he had heard a bang, looked down and saw a body below on a van. He was wearing a black house coat over a blue hoody sweater and black underwear. A white spa style sandal and a cell phone were found nearby. Emergency response personnel attended at the scene and attempted CPR on Isaac. He was taken to St. Michael’s Hospital where he was pronounced dead at 6:19 p.m.
[24] The toxicology report dated February 7, 2013 found a negligible amount of alcohol in Isaac’s system (.53 mg. per 100 ml of blood) together with Lorazepam and Clonazepam, both within therapeutic levels.
[25] The police attended at Isaac`s condominium. The front door was locked and had to be opened. There was no one in the apartment. The balcony door was closed. The apartment was orderly but had not been cleaned recently. The police observed two empty bottles of wine in the kitchen, one in the living room and one in the bathroom. There was a handwritten grocery list, a half pack of cigarettes and a half full ashtray on the center table. They also found a handwritten note which stated:
• “There were probably a lot of things you were overlooking that you didnt like about her. • You cant force someone to love you
• You can’t change the past
• O / → □
• Walk away with dignity; force.”
[26] The investigating officer went out on the balcony. There was no precipitation. He said it was cool but not cold. There was very little wind. Everything was intact and there was nothing unusual.
[27] The Plaintiff filed weather data from Pearson Airport for December 22, 2012. At 5 p.m., the temperature was -0.1 Celsius; the wind was 28 km/hr. and it was mostly cloudy. At 6 p.m., the temperature was 0.1 Celsius; the wind speed was 30 km/hr. and it was still mostly cloudy.
[28] The balcony measures 42.5 inches from the concrete floor to the top of the railing. Isaac had a wooden deck installed on it which Donald says is 3.25 inches above the concrete floor.
[29] A post-mortem examination was carried out on December 24 and 25, 2012 and a report issued dated February 12, 2013. The immediate cause of death was determined to be blunt force injuries.
[30] The Coroner’s Office conducted an investigation and concluded that the death was suicide.
[31] The Plaintiff submitted a claim for the AD&D Insurance death benefit under the Policy. By letter dated April 17, 2013, the Plaintiff was advised that her claim was denied on the basis that Isaac did not die as a result of an accident within the meaning of the Policy.
Analysis
[32] Rule 20.04 (2) provides that the Court shall grant summary judgment if it is satisfied that there is no genuine issue for trial with respect to a claim or defence.
[33] As set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (SCC) at paras 66 to 68, the first step in a summary judgment motion is to determine, based only on the evidence before the court, whether there is a genuine issue for trial. If, following that assessment, there appears to be a genuine issue requiring a trial, then the judge should determine whether the need for trial can be avoided by using the powers granted to the court under R. 20.04(2.1) and (2.2) – weighing the evidence; evaluating credibility; drawing reasonable inferences from the evidence; and ordering oral evidence. The use of such powers is discretionary but such discretion must be exercised provided the use is not against the interest of justice – that is will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[34] Considering the evidence as a whole in this case, I agree with the Plaintiff that the evidence raises a genuine issue requiring trial. The issue is whether the Plaintiff has established on a balance of probabilities that Isaac died accidentally. There is evidence to support both that he died accidently and that he died from his own deliberate actions. I do not agree, however, with the Plaintiff that there needs to be a trial of the issue. In my view the need for a trial can and should be avoided by resort to the powers under R. 20.04(2.1). All of the evidence that could be called at trial is before the court. Neither party has indicated that there is further evidence that must be called. Nor is there any dispute between the parties as to the facts. It is the inferences to be drawn from the facts that give rise to the dispute and those inferences can be determined on this motion just as well as by a trial judge at trial.
[35] As noted, the Plaintiff has raised credibility concerns in respect of the evidence of certain of the police officers and the coroners involved in the investigation of Isaac’s death. Specifically, the Plaintiff is concerned with the factual accuracy of some of the statements in the reports and the conclusions that were reached, both by the police and the Coroner, that Isaac’s death was a suicide. As I advised counsel during the hearing, I do not consider those conclusions to be binding on this court. What is determinative is the evidence before the court of the facts surrounding the event. The police and Coroner do provide some facts in that regard. Much of their evidence is not controversial. To the extent there are errors as raised by counsel, I am mindful of them. Overall, however, I do not consider the evidence of the police officers and coroners to raise a credibility issue requiring a trial. They are independent third parties who have provided their observations of the events. Their evidence forms only part of the evidence as a whole. I have disregarded their opinions and conclusions.
[36] For the above reasons, therefore, I do not consider that the use of the powers granted under R. 20.04(2.1) to decide this case in the absence of a trial to be against the interests of justice.
[37] In a claim under an accident insurance policy, the onus is on the claimant, in this case the Plaintiff, to establish a prima facie case that death was accidental. The standard of proof is balance of probabilities: Martin v. American International Assurance Life Co., 2003 SCC 16, [2003] 1 S.C.R. 158 at p. 173 (S.C.C.). See too: Candler v. London & Lancashire Guarantee & Accident Co. of Canada et al., 1963 155 (ON SC), [1963] 2 O.R. 547 at para.17 (H.C.J.); D. Norwood, J.P. Weir, Norwood on Life Insurance Law in Canada, 3rd ed. (Toronto: Carswell, 2002) at p. 433.
[38] The Plaintiff submits that the onus is on Desjardins to prove suicide. The authorities are clear that where an insurer seeks to rely on an exclusion in the policy in respect of suicide, the onus is on the insurer to establish, on a balance of probabilities. Further, having regard to the common law presumption against suicide, the degree of probability is high. See: Re Beckon (1992), 1992 7707 (ON CA), 9 O.R. (3d) 256 (C.A.).
[39] As noted, however, Desjardins does not rely on the suicide exclusion in the first instance. It submits that the Plaintiff cannot meet her onus to prove accident. It is only if it is determined that the Plaintiff has met her onus that Desjardins submits, as an alternative, that the suicide exclusion applies.
[40] Accordingly, the first issue to be decided is whether, having regard to all of the evidence, the Plaintiff has established on a balance of probabilities that Isaac died as a result of an accident.
[41] An accident is “any unlooked for mishap or occurrence”: Canadian Indemnity Co. v. Walkem Machinery & Equipment Ltd., 1975 141 (SCC), [1976] 1 S.C.R. 309 at pp. 315-16 (S.C.C.). In determining whether the event in question was an accident, the court must look to the chain of events as a whole and consider whether the insured expected death to be a consequence of his or her actions and circumstances: Martin, at p. 165.
[42] The Plaintiff submits that, having regard to all the facts, what likely occurred in the short time between Isaac’s phone call to his brother at 5:32 p.m. and his fall from the balcony at approximately 5:50 p.m. was that after the call, Isaac went out on the balcony with his phone to await his brother’s return call and have a cigarette. Given he just had a housecoat on over his underwear and was wearing slippers, he did not intend to stay long. On the balcony, he leaned against the balcony rail and accidently fell over the rail.
[43] In my view, when considered as a whole, the evidence does not support the Plaintiff’s scenario. It is not reasonable to infer from the evidence that Isaac could have fallen over the railing by simply leaning against it. Isaac was 69.5 inches tall. The railing is 39.25 inches above the wooden deck. Accordingly, when Isaac stood on the deck against the rail, the rail was 4.5 inches above the mid-point of his body. Even if he leaned against the rail, it was too high in relation to his height to enable him to accidently fall over it. There is no evidence of any issue with the strength of the railing. Shortly after the incident, the investigating officer observed no precipitation on the deck which would have made it slippery.
[44] The evidence establishes that while Isaac was a stable, peaceful man who had a good job, friends and a family he was close to and had no financial issues, on the day of his death he had been under severe emotional stress. Although he had broken up with his longtime girlfriend a few months earlier, he had still been attempting to contact her. Whatever thoughts he had of getting back together with her, as had happened previously, were abruptly brought to an end when she contacted the police and they in turn contacted him. It is clear that Isaac was extremely upset she had done that and told the police he was not to contact her. After the police left and although it was late at night, he subsequently spoke with his brother Donald on the phone on three separate occasions, each one lengthy. During the course of those calls, Donald called the Plaintiff who was concerned enough about Isaac that she called 911 and asked the police to check on Isaac.
[45] While there is no evidence from Donald as to what was specifically discussed during his calls with Isaac, he does concede that Isaac was upset with what had happened and that he had to calm him down. The police record of the 911 call notes that the Plaintiff told the dispatcher that Isaac had relationship problems and was about to jump. That information could only have come from Donald who, in turn got it from Isaac.
[46] The Plaintiff submits that the record of the 911 call is hearsay and inadmissible. The Plaintiff filed an affidavit in which she admitted that she called 911 about her son because she was worried about him and could not check on him herself. She made no reference to what she told the dispatcher. Once the details of the call were produced, she was entitled to file an affidavit challenging the dispatcher’s record of the call. She didn’t. In my view, in the circumstances, the record of the 911 call is admissible for the truth of its contents.
[47] While the evidence indicates that after he woke up on the morning of December 22, Isaac appeared to his friend and family to be emotionally stable, the events of the prior evening are too close. After he returned from his parents place in the afternoon, he consumed some alcohol as well as Lorazapam and Clorazapam. While the amounts were not significant, the toxicology report indicates that the combination of alcohol and Lorazapam would be expected to produce enhanced central nervous system depression.
[48] Having regard to all the evidence, therefore, I have concluded that the Plaintiff cannot meet her onus of proving on a balance of probabilities, that Isaac’s death was an accident.
[49] In light of my conclusion, I need not consider Desjardins’ alternative submission that the suicide exclusion in respect of the AD&D Insurance applies.
[50] The Plaintiff also claims damages against Desjardins for breach of duty of good faith. The claim is based on Desjardins’ denial of the Plaintiff’s claim.
[51] There is no evidence that Desjardin’s denial of the Plaintiff’s claim was done in bad faith. Rather, the evidence, in my view, is to the contrary. Desjardin advised the Plaintiff, after a lengthy investigation, that in its view, Isaac’s death did not meet the definition of accident within the Policy. In reaching that decision, Desjardin relied on the report of the postmortem examination and the toxicology report. In my view, it was reasonable for them to rely on those reports and they supported Desjardin’s decision. Based on the information it had at the time, therefore, Desjardins decision to deny coverage for AD&D Insurance was neither arbitrary nor unreasonable.
[52] Accordingly, from the evidence or lack thereof, I am satisfied that the Plaintiff’s claim for breach of duty of good faith cannot succeed.
[53] Finally, the Plaintiff raises the issue of what policy applies and whether a booklet summarizing the insurance coverage (and which contains different terms from the Policy) is applicable.
[54] The evidence is clear that the Policy which was produced by Desjardin in its affidavit of documents is the insurance policy which applies. Further, Desjardins did not author the booklet produced by the Plaintiff which purports to summarize the insurance coverage for Metro employees. Even if the booklet somehow applied to Desjardin, the material differences between the booklet and the Policy are that the former contains no definition of accident and provides for a smaller death benefit that under the Policy. Those differences would not in my view change the outcome of the action against Desjardins in the Plaintiff’s favour.
[55] For the above reason, therefore, Desjardin’s summary judgment motion is allowed. The Plaintiff’s action is dismissed.
[56] In my view, costs should follow the event. At the conclusion of argument I received costs outlines from both parties. Counsel advised that offers to settle had been made. Accordingly, Desjardin shall have 15 days from today to submit brief (no more than 3 pages, double spaced) cost submissions apart from its cost outline. The Plaintiff shall have 15 days from receipt of Desjardins’ submissions to reply, also three pages.
PATTILLO J.
Released: September 23, 2015
COURT FILE NO.: CV-13-483884
DATE: 20150923
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHANDERDAI PETERS, Executrix and Trustee of the Estate of ISAAC PETERS
Plaintiff
– and –
DESJARDIN SECURITE FINANCIERE, COMPAGNIE D’ASSURANCE VIE/DESJARDINS FINANCIAL SECURITY LIFE ASSURANCE COMPANY
Defendant
REASONS FOR JUDGMENT
Pattillo J.
Released: September 23, 2015